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Sitaram v. Municipal Board, Sambhat

Rajasthan High Court

Dec 20, 1961

Judgment

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Factual and Procedural Background

This is a writ petition under Article 226 of the Constitution filed by Sitaram seeking quashing by certiorari of the order dated 28 December 1959 of the Additional Commissioner, Jaipur.

The material factual and procedural chronology, as set out in the opinion, is as follows:

Sitaram owned a vacant piece of land near his house in Jopat Mohalla, Sambhar town.
On 1 February 1958 Sitaram applied to the Municipal Board, Sambhar for permission to make specified constructions.
The Executive Officer of the Municipal Board granted permission on 9 April 1958.
The Municipal Board submitted an application under section 195 of the Rajasthan Towns and Municipalities Act, 1951 to the Collector, Jaipur seeking cancellation of that permission; the Additional Collector rejected that application (dates in the record include 31 October 1958 and 31 December 1958 in different passages of the opinion).
Sitaram proceeded with construction and had nearly completed it.
A third party, Ramniwas (not a party to the present writ), appealed the Executive Officer’s order to the Additional Collector; Kirpa Shanker was made a party in that appeal. The Additional Collector rejected that appeal (the opinion records an order dated 31 December 1958).
Kirpa Shanker then applied to the Additional Commissioner, Jaipur under section 210 of the Act against the Executive Officer’s order of 9 April 1958.
By order dated 28 December 1959 the Additional Commissioner set aside the Executive Officer’s permission and cancelled the order of 9 April 1958. Sitaram challenged that cancellation by the present writ petition mainly on the ground that the Additional Commissioner lacked power under section 210 to cancel the Executive Officer’s permission.
The Municipal Board contested the writ, placing before the court documentary material indicating (a) that the disputed land belonged to the Municipal Board, (b) earlier attempts and refusals relating to Sitaram’s claimed title and permissions (including a 1952 sale purportedly set aside on 14 August 1952 by the Director of Local Bodies), (c) prior refusal of permission on 20 July 1953 (Ex. D.3), (d) an Administrator’s demolition order and a Collector’s dismissal of an appeal on 2 March 1959, and (e) the Board’s express directions (Ex. D.12 and Ex. D.13) that the Executive Officer should not decide the 1958 application and that the matter should be determined by the Municipal Board itself.
The Executive Officer granted the permission on 9 April 1958 despite the Municipal Board’s earlier direction (general meeting of 9 March 1958 and an emergent meeting on 8 April 1958 recording the matter should follow the Board’s instructions).

Legal Issues Presented

Whether the permission granted by the Executive Officer on 9 April 1958 — given in alleged contravention of express directions of the Municipal Board — was binding on the Municipal Board.
Whether the Additional Commissioner, exercising powers delegated by the Government under section 210 of the Rajasthan Towns and Municipalities Act, 1951, was entitled to call for the records and cancel or set aside the order of the Executive Officer granting permission.

Arguments of the Parties

Petitioner (Sitaram) — main contentions as recorded

Counsel for Sitaram (Mr. C. L. Agarwal) argued that section 210 could not properly be used by the Additional Commissioner to set aside the Executive Officer’s order because, he contended, section 210 applies to review decisions of a Collector or any other officer appointed or authorised by the Government under Chapter XII of the Act; thus it did not extend to the present Executive Officer acting under other provisions. (The petitioner’s submission relied on a narrower reading of “under this Act”.)
It was also contended for the petitioner that the act of the Executive Officer in granting permission was binding on the Municipal Board — counsel relied on the principle (as in Tullarma v. The Corporation of Calcutta) that a municipal corporation is generally bound by the acts of its officers.

Respondent (Municipal Board and representation) — main contentions as recorded

The Municipal Board placed on record that the land belonged to the Board and that the petitioner had no title; prior purported sale had been set aside by the Director of Local Bodies.
The Board’s counsel (Mr. Rastogi) argued that the Executive Officer had acted in violation of express directions of the Municipal Board and therefore his act was not binding on the Board.
It was further argued that section 210 was wide enough to permit the Additional Commissioner (to whom the Government delegated the power under that section) to review and cancel the Executive Officer’s order because the Executive Officer had been appointed by the Government and was therefore an officer “appointed or authorised by the Government under this Act”.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tullarma v. The Corporation of Calcutta	Proposition that a corporation is generally bound by the acts of its officers; exception where the act is procured by fraud or collusion with the officer.	The court acknowledged reliance on this authority but distinguished the present case: because the petitioner knew that the Executive Officer had been forbidden to grant the permission and obtained it regardless, the Executive Officer’s act could not be held binding on the Municipal Board under the circumstances (the case was treated as falling within the exception).

Court's Reasoning and Analysis

The court addressed two intertwined questions: (A) whether the Executive Officer’s grant of permission was binding on the Municipal Board, and (B) whether the Additional Commissioner had power under section 210 to examine and reverse the Executive Officer’s order.

On the binding effect of the Executive Officer’s order:

The court observed that municipal government vests in the Municipal Board under section 21 of the Act, and that powers may be delegated to officers under section 34.
The Executive Officer had delegated authority to grant permission by virtue of the statutory scheme (the opinion refers to section 108 sub-sec. (2) and (3) and section 216 as the source of delegated authority), and therefore had prima facie authority to grant permission.
However, the court emphasised that the Executive Officer held only delegated powers which were exercisable subject to the control of the Municipal Board and the Chairman (section 215(a) is cited for the Chairman’s control). The Board is the superior authority; an officer cannot override express directions of the Board.
The record showed that the Municipal Board on 9 March 1958 had expressly directed the Executive Officer not to take proceedings or grant permission until the general meeting decided the matter (Ex. D.12) and that the petitioner had been informed of this direction on 16 March 1958 (Ex. D.13). An emergent meeting on 8 April 1958 reiterated the Board’s instruction. Despite this, the Executive Officer granted permission on 9 April 1958.
Consequently, the court concluded the Executive Officer acted contrary to express Board directions and thus acted beyond his delegated authority; under those circumstances the Executive Officer’s act could not be treated as binding on the Municipal Board.
The court considered the petitioner’s reliance on the Tullarma principle but pointed out the exception where the officer’s act is procured with knowledge of fraud, collusion, or in a situation where the party knew the officer was forbidden — and found that the petitioner knew the Executive Officer had been forbidden to grant permission.

On the scope and application of section 210:

The court quoted section 210, which empowers the Government to call for records to satisfy itself as to the correctness, legality or propriety of any order passed by a Divisional Commissioner, Collector or any other officer appointed or authorised by the Government under the Act, and to reverse or modify such orders after examining the records.
It was not disputed that the Government had delegated its section 210 power to the Additional Commissioner; thus the Additional Commissioner was authorised to examine the correctness, legality or propriety of orders passed by officers appointed by the Government under the Act.
The petitioner argued the words “under this Act” should be read as limited to officers appointed under Chapter XII of the Act. The court rejected that argument as artificial: if the legislature had intended to confine the phrase to Chapter XII it could have said so; the court could not add such a restriction by interpretation.
Given that the Executive Officer was appointed by the Government under the Act, the Additional Commissioner (acting under delegated section 210 authority) was entitled to call for the records and to reverse or modify the Executive Officer’s order. The court therefore sustained the use of section 210 in this instance.

Holding and Implications

Core Ruling: The writ petition is dismissed with costs.

Direct consequences and immediate implications for the parties (as recorded in the opinion):

The court held that the Executive Officer acted beyond his authority in granting the permission on 9 April 1958 in contravention of express directions of the Municipal Board, and therefore that act was not binding on the Municipal Board.
The Additional Commissioner, exercising the Government’s power under section 210 (as delegated), was entitled to examine and set aside the Executive Officer’s order; the Additional Commissioner’s cancellation of the permission was thus sustained by the dismissal of the writ petition.

The opinion does not discuss broader legal consequences beyond the direct effect on the parties and does not purport to lay down a novel or expansive new precedent; it applies established principles of delegated municipal authority and the statutory scope of section 210 to the facts of this case.

Show all summary ...

Bhandari, J.:— This is a writ petition under Art. 226 of the Constitution by Sitaram against the Municipal Board, Sambhar the Additional Commissioner, Jaipur, the Commissioner, Ajmer and Shri Kirpa Shanker praying that by a writ of certiorari the order of the Additional Commissioner dated 28th December, 1959 be quashed.

2. The case set up by the petitioner is that he had vacant piece of land close to his house in Jopat Mohalla in Sambhar town.

3. On 1st February, 1958 he applied to the Municipal Board, Sambhar town, for permission to make certain constructions referred to in paragraph 2 of the petition and the Executive Officer of the said Municipal Board granted permission to the said constructions on 9th April, 1958. Thereupon the Municipal Board submitted an application under sec. 195 of the Rajasthan Town Municipalities Act, 1951 (hereinafter called the Act) to the Collector, Jaipur for cancelling that permission but this application was rejected by the Additional Collector on 31st October, 1958. Thereafter, the petitioner started making constructions on his land and had almost completed the same. One Ramniwas who is no party to this application appealed against the order of the Executive Officer, dated 9th April, 1958, to the Additional Collector. Jaipur and in that appeal Kirpa Shanker respondent was also made a party. In this appeal, the prayer was for cancelling the permission. The Additional Collector, Jaipur by his order dated 31st December, 1958, rejected the appeal. Thereafter Kirpa Shankar submitted an application to the Additional Commissioner, Jaipur under sec. 210 of the Act against the order of the Executive Officer dated 9th April, 1958 granting permission to the petitioner. The Additional Commissioner, Jaipur by his order dated 28th December, 1959, set aside the permission given by the Executive Officer and cancelled the order dated 9th April, 1958. This order of the Additional Commissioner is challenged by this writ petition mainly on the ground that the Additional Commissioner had no power to cancel the permission granted to the petitioner acting under sec. 210 of the Act.

4. The Municipal Board, Sambhar has contested this writ petition and it has placed on record relevant documents showing the circumstances under which the permission was granted by the Executive Officer to the petitioner contrary to the directions and instructions of the Municipal Board. It is stated that the land belonged to the Municipal Board to which the petitioner had no right, title or interest. The Chief Officer, Municipal Board, Sambhar, had permitted the petitioner to construct ‘Chabutra’ and verandah adjacent to the disputed land by sale of that land to him on 29th February, 1952, but this order was later on set aside on 14th August, 1952, by the Director of Local Bodies. Thereafter the petitioner started making unauthorised constructions and a notice was issued by the Municipal Board to the petitioner to show cause why the constructions should not be stopped. On 20th February, 1953, the petitioner submitted application to the Municipal Board to grant him permission to make constructions over the disputed land (Ex. D. 3). This application was refused by the then Executive Officer on 20th July, 1953 on the ground that the petitioner was not able to prove his title to the said land. At that time the Municipality was managed by the Administrator appointed by the Government and the Administrator, after again hearing the petitioner on the question of the un-authorised constructions as well as for grant of permission to make new constructions, ordered the demolition of the constructions made by the petitioner on the disputed land. An appeal was filed by the petitioner to the Collector which was dismissed on 2nd March, 1959. On 1st February, 1958, the petitioner again applied to the Chairman, Municipal Board for permission to construct on the disputed land (Ex. D. 8). The application came for decision before the Executive Officer. The Executive Officer was alleged to be taking undue interest in the matter to favour the petitioner. Apprehending this attitude of the Executive Officer, representations were made to the Municipal Board, and the Municipal Board in its general meeting on 9th March, 1958, ordered the said Executive Officer not to take any proceedings in the matter unless it was decided by the general meeting of the Municipal Board, and directed him to send the file to the Municipal Board. The Municipal Board further ordered that the petitioner be bound down under sec. 108, clause (3) of the Act not to make any constructions until the matter was decided by the Municipal Board. Notice of this resolution was given and served upon the petitioner. On 21st March, 1958, Kirpa Shankar applied to the Municipal Board that the question of permission may be decided by the Municipal Board instead of by he Executive Officer. An emergent meeting of the Municipal Board was held on 8th April, 1958, and it was decided unanimously in the presence of the said Executive Officer that the should act according to the instructions of the Municipal Board taken earlier. However, on 9th April, 1958 the said Executive Officer granted permission to the petitioner to make constructions on the disputed land taking the view that he was not bound by the orders of the Chairman of the Municipal Board. It may also be mentioned that the said Executive Officer was appointed as Secretary of the Municipal Board, Sambhar by the Government and latter on his designation was changed as Executive Officer by order of the Director of the Local Bodies, Rajasthan dated 6th January, 1957 (Ex. D. 16). It is urged on behalf of the Board that the Executive Officer had acted Page: 580in violation of the directions given by the Municipal Board and as such the permission granted to petitioner was of no avail. It is also urged that as the Executive Officer was one appointed by the Government, the Additional Commissioner could act under sec. 210 of the Act and cancel the order passed by the said Executive Officer. Mr. C.L Agarwal on behalf of the petitioner has venemently contended that sec. 210 could not have been utilised by the Additional Commissioner for setting aside the order of the Executive Officer as that section was applicable to review the decision of Collector or any other officer appointed or authorised by the Government under Chapter XII of the Act, not by any other provision of law. It is also contended that the Act of the Executive Officer in granting the permission to the petitioner was binding on the Municipal Board and it cannot be turned down on the ground that the land belonged to the Municipal Board and not to the petitioner. On behalf of the Municipal Board, Mr. Rastogi has argued that the Executive Officer could not have acted in violation of the express direction of the Municipal Board, and if he so acted such act of the Executive Officer is not binding on the Municipal Board. He further urged that the provisions of sec. 210 of the Act are wide enough to include the action of the Executive Officer who was in this case appointed by the Government.

5. We do not propose to enter into the question about the title to the land in dispute. We proceed to determine how far the permission granted by the Executive Officer was binding on the Board. We may point our that on 9th March, 1958 the Muncipal Board had expressly directed the Executive. Officer that he should not take any proceedings for grant of permission to the petitioner till the matter was decided by the general meeting. This document is Ex. D. 12 on record. Sitaram was also informed of this on 16th March, 1958 by the order of the Chairman (Ex. D. 13). The proceedings of 8th April, 1958, which have been taken on record, also show that there was a transfer application of the case from the file of the Executive Officer and, therefore, the Executive Officer was directed not to proceed in the matter and keep it pending. The permission was granted by the Executive Officer in spite of these express directions on 9th April, 1951. It is to be examined whether the permission granted under these circumstances was proper. Under sec. 21 of the Act, the municipal government if a municipality vests in the municipal board except so far as it is otherwise expressly provided. Powers can be delegated to officers under sec. 34 of the Act and the Executive Officer has been delegated the power for granting permission under sec. 108 sub-sec. (2) and (3) by virtue of sec. 216. Thus, the Executive Officer had no doubt the authority to grant permission to the petitioner. But the Executive Officer was only enjoying the delegated powers which vested in the Municipal Board. He was to act under the general control of the Chairman as provided under section 215(a) of the Act. While acting under powers delegated to him he could not override the authority of the Municipal Board in which body the municipal government of the Municipality was vested. The Municipal Board was an authority superior to the Executive Officer and the Executive Officer enjoyed only delegated powers. He could not go contrary to the directions of the Municipal Board. It is clear from what has been mentioned above that the Executive Officer had passed orders contrary to the directions given by the Municipal Board and he did so arrogating to himself the position that he was not bound by the directions given by the Municipal Board. This was altogether a wrong view of the power which he enjoyed. The petitioner was also informed that the Executive Officer had been directed by the Municipal Board not to grant the permission. Under these circumstances we are of the opinion that Executive Officer acted, beyond his powers and very improperly. Learned counsel for the petitioner has relied on Tullarma v. The Corporation of Calcutta(1) for showing that the corporation must be taken to be bound by the acts of its officers. A little earlier in this very case, the view is expressed that in a case of fraud or collusion by the person who obtained the permission, with the officer of the corporation, the case would be different.

6. Here we have a case in which it was known to the petitioner that the Executive Officer had been forbidden to grant any permission to the petitioner on the relevant date and still he obtained the permission. We are of the opinion that under these circumstances the act of the Executive Officer cannot be held binding on the Municipal Board.

7. Now, let us examine the question whether the Additional Commissioner was entitled to cancel the permission under sec. 210 of the Act. Sec. 210 runs as follows—

“210-Power of Government to call for records. The Government may for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed by a Divisional Commissioner, Collector or any other officer appointed or authorised by the Government under this Act call for the connected records and may in doing so direct that pending the examination Page: 581of the records such order be held in abeyance.

(2) On examining the records the Government may reverse or modify the order of a Divisional Commissioner, Collector or any other officer appointed or authorised by the Government under this Act as it deems fit.”

8. It is not now in controversy that the Government had delegated to the Additional Commissioner its power under sec. 210. The Additional Commissioner was thus authorised to examine the correctness, legality or propriety of any order passed by any officer appointed by the Government under the Act.

9. In is not denied that the Executive Officer was appointed by the Government under the Act, but the argument of the learned counsel for the petitioner is that in spite of the use of the words “under the Act” the various provisions of Chapter XII show that the officer must be one appointed under Chapter XII by the Government. We fail to give effect to this argument on the simple’ ground that nothing would have been easier for the legislature than to employ the expression “under Chapter XII” in place “under this Act” if it meant to say so. This argument has got no force.

10. The writ petition is, therefore, dismissed with costs.